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CACNews 4th Q Topic Atty Client Privilege

  • 09/02/2015 8:40 AM
    Message # 3507182

    Interesting dilemma. How could a criminalist alert the judge of a possible miscarriage without violating atty-alient priv?

    I was wondering if the crim got his own lawyer to write an amicus brief to the court, could that shield the crim from blowback and get the issue of concern into the court record...

    just 2 cents... 

  • 09/02/2015 12:11 PM
    Reply # 3507660 on 3507182

    John, I'm not able to answer your question about an amicus brief. But, I thought I'd share a response from Michael Chamberlain (DOJ Attorney) regarding my scenario. He has given me permission to share this and credit him.

    "Generally, a trial witness should not take it upon herself to speak to the judge about evidence in the case.  And a defense expert would indeed violate the attorney-client privilege and attorney work product privilege by speaking with the prosecutor.  In the situation you describe, the expert could ask the defense attorney, in writing, whether all of the reports and data generated were provided to the prosecutor, as is required by law when the expert testifies.  If the defense attorney responds that he/she did not provide the incriminating information, and indicates that he/she is knowingly violating state law by withholding it, then potentially the expert could ask to speak with the judge and describe the situation in general terms.


    "It is not the responsibility of the expert to ensure that attorneys for the opposing party fully comprehend the science underlying the testimony."

  • 10/03/2015 12:54 PM
    Reply # 3558592 on 3507182
    I wanted to join in the conversation here as well.  In the scenario presented, I personally saw very little wrong as presented.  I think the primary issue here is the definition of "justice".  

    While attending the National Firearms Examiner Academy, the students had the pleasure of having an federal public defense attorney provide a several hour talk/lecture on courtroom testimony.  The first topic we discussed was the concept of "justice".  He started out by asking us "what is 'Justice'"?  One of us fell into the trap by saying it's the truth.  He laughed.  Justice is not about the truth, it's about "fairness" or following the rules of the legal system.  One of the rules is a requirement to tell the truth.  Another rule (and perhaps a more important once, since it in the Bill of Rights) is the right of a defendant to not be forced self incriminate.  

    So what does this have to do with the presented scenario? Well, let's look at the purpose a expert hired by a defense attorney.  This expert is providing a defendant an (re)examination of the evidence, and during that examination, the expert should be aware of his obligation to not violate the defendant's right of non-self incrimination.  This obligation to Fifth Amendment can create some real ethical dilemmas (as has been outlined by Pete Barnet in past CACNews issues).  Under this service, the Criminalist is not obligated to divulge incriminating evidence; in fact purposely doing so would likely be in violation of the defendant's rights.  

    This concept can be really foreign to many of us who spend our entire career working in law enforcement-based laboratories.  In this function, we ARE obligated to divulge exculpatory information.  Why?  Because it's about fairness to the defendant, and ensure that he/she gets a FAIR trial (i.e. Justice).  

    I think we can all agree a defendant has the right to have evidence re-examined by his/her own expert.  Right?  If so, then that re-examination requires that the physical evidence consultant be aware of his/hers client's rights and to not violate those rights.  Doing this is serving justice and I see no conflict between IV(D) and the Preamble.  

    Last modified: 10/06/2015 8:49 AM | Anonymous member
  • 11/09/2015 11:42 AM
    Reply # 3625114 on 3507182


    Thanks for bringing up this important information.  Now that I am involved in consulting for the defense, it has cleared up some reservation when I accepted this line of work.  Perhaps, I can sleep better at night providing another rational point of view contradicts the one you provided.  That would definitely create and ethical dilemma.

    This might make a great presentation at the next CAC meeting.  Hope someone viewing these posts can get the ball rolling on this. 

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